( October 7, 2014, New Delhi, Sri Lanka Guardian) In 1997, National Human Rights Commission issued its guidelines on encounter killings in response to Andhra Pradesh Civil Liberties Committee’s (APCLC) complaint about 295 encounters in Andhra Pradesh. However, close to 70 years after independence, we are still struggling for this minimum: that after every killing arising from police action, the police be required to prove that they killed in self defence – that the force they used was necessary and proportional to the threat they faced. This can only be proved in a court of law or in a free and fair enquiry. What we have instead is repeated allusion to the antecedents of those killed, as if that is enough to settle the question of whether the encounter was genuine or fake.

The argument against investigations into extra judicial killings is made at two levels: at the first, and the more crude level, it is argued that the police is fighting an uneven battle against terrorists – or gangsters, or whoever happens to be the favourite whipping boy of the moment – and they cannot afford, or be expected to follow the rule book too closely. Everyone from KPS Gill, who formalized headhunting in Punjab during the Khalistan years, to Prakash Singh, champion of police reforms, is a votary of this line. “None of the legal principles of the Constitution are applicable” to the police, stated the Union government’s affidavit in the Supreme Court in another matter on the subject.

The second argument is that the system provides enough checks and balances to ensure that fake encounters do not go unpunished. The police officer receiving the information of death by encounter killing can investigate and decide whether cognizable offence amounting to culpable homicide has occurred. Universally though, the investigating officers decide that the deceased had opened fire on the police necessitating return of fire, culminating in their death. Thus it is the deceased who are booked under section 307 of IPC along with related sections such as Arms Act, cases closed and files put away.

The magisterial enquiry is said to be yet another mechanism of accountability. Failing which, there is the NHRC, which is said to be keeping a watch, conducting its own enquiries and disbursing compensation wherever it suspects wrongdoing.

Through a series of RTI applications filed by Jamia Teachers’ Solidarity Association (JTSA), it was learnt that between 1995 and 2012 in Delhi, only two magisterial enquiries had been conducted, and not a single departmental enquiry had taken place in connection with any encounter killing. In the few cases that magisterial enquiry has been ordered, the reports are suppressed and forgotten. It has been impossible to procure a copy of the magisterial probe into the Sonia Vihar encounter of 2006, which recommended a CBI enquiry. Compare this to the numerous gallantry awards bestowed on police officers for eliminating criminals and terrorists, and the picture becomes clear. The state incentivizes killing.

In the infamous Connaught Place encounter of 1997, where the Special Cell gunned down two businessmen, an FIR was registered against the businessmen, who, the police declared were dreaded criminals. It was only upon the direction of the High Court that this FIR was quashed and a fresh one filed against the police party which had shot the two down. ACP SS Rathi who led the ‘operation’ and his men were convicted for murder – though they continued to remain on duty pending their appeals in the High Court. This is one of the rare cases where policemen have been prosecuted in encounter killing.

This reflects the reign of impunity enjoyed by the police, the cavalier indulgence of this violence by the institutions of the state, and the tortuous route to justice. It is private individuals, the kin of the deceased, who must run from NHRC to the courts, for years, while the system frustrates them at every step.

This is the scenario in which we have received the Supreme Court’s ruling laying down the procedure to be followed in cases of encounter killing. This judgement results from PUCL’s writ petitions filed in late 1990s – at a time when encounters had become the favoured method of dealing with the underworld, leading to hundreds of killings – first in the Bombay High Court, and upon finding no relief in the Supreme Court.

At first glance, the SC appears to codify the NHRC guidelines. Limiting as that may be, the judgement is really marred by the choice of ambiguous language – which is likely to be exploited by the police to the hilt – and worse still, guidelines that will now make it more difficult for the families of those killed in encounters to seek even a modicum of justice. Surely, the SC must have been aware of the practice of FIRs being filed against the deceased. Why then did it not clearly direct that this practice needs to end and instead FIRs against policemen need to be filed? This pusillanimity will imply that the SC guidelines can be complied with, with absolutely nothing changing on the ground. And certainly it will be a relief for the police to hear that investigations into killings will be conducted by fellow police officers (of another police station) or the CID.

While the NHRC has been weak in securing prosecution of guilty police officers, its role reduced to disbursing compensation, the SC guidelines will now further shrink the possibility of any positive intervention by the Commission. Up till now, the NHRC could conduct its own enquiries and provide compensation to the families, fixed usually at Rs 5 lakhs. Compensation had become a parallel system, unrelated to the filing of the FIR against the police. The SC guidelines that NHRC need not be involved unless there is serious question over the credibility of the investigation and that compensation to dependents of those killed in encounters will be decided under section 357 A of the Code makes NHRC redundant in these cases. An organization that we needed to fill with greater vigour has been hollowed out further.

Compensation will be dependent on the filing of FIR and chargesheet against the policemen involved in the encounter, and will have to await the conclusion of the trial. One only wishes that its guideline on filing of FIR had been so unequivocal. In absence of that directive, the guideline on compensation will ensure that the kin of the deceased will not receive anything.

One cannot help but compare this judgement with that of the five-judge bench of the Andhra Pradesh High Court pronounced in 2009. It held that a combined reading of “relevant statutory provisions; the binding and persuasive precedents; the normative architecture of private defense justifications generally and in the context of the provisions of the IPC; and the constitutional values” left no doubt that FIRs must be registered against the police officers “notwithstanding a claim as to the death occurring while exercising the right of private defence”. It also held that the police had no authority to file closure reports without judicial scrutiny.

The AP High Court’s ruling would have impeded the routines of encounter killings and created a legal precedent which would have eroded the very basis of police impunity. Within days, the Andhra Pradesh Police Officers Association rushed to the Supreme Court for a stay, and secured one. The case is currently pending in the SC. One only hopes that the outcome of that will be more ground breaking than the present ruling.

Manisha Sethi is an activist with Jamia Teachers' Solidarity Association (JTSA). A slightly edited version of the article was published in The Deccan Herald on 5th October 2014.